The Gilmer Law Firm, PLLC

Few areas of law are as wrought with emotion as family law, particularly cases involving child custody disputes.

This is precisely why it is unwise to pursue or fight a Brooklyn child custody case without the benefit of an experienced family law attorney. The stakes are simply too high. Not only do participants stand to lose valuable parenting time with their children, they may be forced into long-term child support arrangements that don't accurately reflect their current financial situation.

A good example of this was illustrated in the case of Brush v. Davis, reviewed recently by the Wyoming Supreme Court. Although this was an out-of-state case and family law statutes can vary from state-to-state, the general principal of the pitfalls of pro se representation are relevant here in New York.

Pro se representation is when a party to litigation chooses to represent himself or herself.

In the Brush case, both parties represented themselves pro se, and the result was a confusing, drawn-out battle, wherein the mother ultimately lost and was further denied her appeal on the grounds of due process violations. Of course, had an attorney been by her side to represent her from the start, she could have assured that her due process rights were protected throughout the process.

According to court records, the pair divorced in 2005 and at that time, the mother was awarded primary custody and child support payments from the father.

In late 2012, the father filed a pro se motion to modify the child custody and time-sharing agreement. However, he did not file the correct forms. The documentation indicated certain relevant forms were included when they in fact were not, and the date that the mother was served the paperwork was incorrectly reflected in the court record.

But in response to receiving this paperwork, the mother did not retain counsel either. In fact, she didn't respond at all, resulting in the clerk's office issuing a default against the mother. However, the court refused to modify the child custody case without a hearing. A hearing was held, with the court holding that because the mother was in default, the mother would be allowed to cross-examine her husband's witnesses, but would not be allowed to bring her own or testify on her own behalf.

And still, she did not hire an attorney.

Ultimately, the district court sided with the father in finding that there had been a substantial change in circumstance and that it was in the child's best interest for the father to be awarded primary custody.

The court requested that both parties file financial affidavits to determine child support. The father filed one. The mother did not, although she had previously provided an affidavit of indigency prior to the hearing. The court used this document to determine that she should pay $340 monthly.

It was only at this point that the mother retained an attorney and filed an appeal. She claimed the district court lacked jurisdiction because the father's original paperwork wasn't properly filed, she had been denied due process by the court's refusal to allow her to testify on her behalf and that the court had abused its discretion with regard to the child support determination.

The appellate court rejected her claims, and the state supreme court affirmed this ruling.

Although the father had failed in properly filing and labeling certain paperwork, the court determined that the mother had ample time to respond to these failures - and she didn't. She failed to prove that his clerical errors resulted in a fundamental unfairness of the procedures.

The court further found that although defaults in family law cases - the kind that would render a party unable to bring their own witnesses or testify on their behalf - are not preferable, it's up to the person in default to demonstrate why the ruling should be set aside. Without the benefit of an attorney, she didn't realize that meeting this standard likely would have been simple. But without ever making the attempt, she forfeited her right to argue this point later.

We certainly understand that divorce and child custody proceedings are not only daunting, but also costly for many people. We work hard to keep our rates affordable. The cost of going to court without an attorney, however, can be far higher in the end.

If you are facing a child custody fight in Brooklyn, call our offices at (718) 864-2011.